This post was written by Eckert Seamans attorney Jamie Inferrera.

A Delaware court recently issued a decision reaffirming an individual’s right to keep and bear arms outside of the home. In Delaware State Sportsmen’s Association and the Bridgeville Rifle and Pistol Club v. Delaware Department of Natural Resources and Environmental Control and Delaware Department of Agriculture, C.A. K18C-05-047-JJC (Del. Super. Oct. 11, 2018), the Plaintiffs challenged a new regulation that prohibited firearms in camping areas of state parks and state forests where people sleep overnight with their families, such as lodges, as well as related restrictions that extended beyond what state statutes provide.

This case was based in part on the Delaware Supreme Court’s ruling in Bridgeville Rifle and Pistol Club, Ltd. v. Small, Del. Supr., No. 15, 2017 (Dec. 7, 2017) (“Bridgeville I”)(previously highlighted on these pages), where the High Court found regulations that banned firearms in all areas of the state parks to be a violation of both the Second Amendment of the U.S. Constitution, and Article I, Section 20, of the Delaware Constitution. Section 20 recognizes a right to bear arms that is much broader than the Second Amendment, and expressly enumerates the right to bear arms for the protection of self, home, family, state, as well as for recreational and hunting purposes.

In a 41-page opinion on cross motions for summary judgment, the Delaware Superior Court held that the new restrictions, while more narrowly-tailored in scope than the blanket restrictions in Bridgeville, were in part both constitutionally and statutorily invalid.

Brief Factual History

Following the Delaware Supreme Court’s decision in Bridgeville I, the State Agencies drafted emergency regulations restricting the possession of firearms in designated “sensitive areas,” which included camping areas in state parks and state forests. The Agencies developed an administrative record including public comments, a hearing officer’s report and legal responses from the Delaware Department of Justice. The Plaintiffs challenged the regulations within two weeks of the effective date.

State’s Burden of Proof

The Court noted the complex nature of the burden of proof in this case. The Plaintiffs challenged both the illegality of the regulations because of statutory preemption and the unconstitutionality of the regulations. Typically, the plaintiff holds the burden of proof challenging the legality of regulations and the regulations are presumed valid. However, when the constitutionality of regulations are challenged, it is on the agency to establish their constitutionality and the regulations are subject to intermediate scrutiny. Doe v. Wilmington Housing Authority, 88 A.3d 654, 666 (Del. 2014)(previously highlighted on these pages); Bridgeville I, 176 A.3d at 656.

Notable Principles of Law

The Court held that the Agencies’ designation of camping areas as “sensitive,” and thus further restricting individuals from carrying firearms, does not survive intermediate scrutiny.

  Right to Bear Arms

The Court noted that the straightforward language in Bridgeville I recognizing “the people’s right to have a firearm while camping overnight in a State park,” Bridgeville I, 176 A.3d at 638, presents a high hurdle to satisfy intermediate scrutiny. The Court took guidance from Bridgeville I and summarized a three-part test for determining if an area’s designation as “sensitive” satisfies intermediate scrutiny: (1) Is there a controlled entry point? (2) Are visitors screened by security? (3) Is the area supervised by law enforcement personnel or easily accessible to law enforcement and emergency responders?

The Court found that the administrative record did not support finding that the aforementioned test is met for camping areas. The Court further noted that the administrative record was void of any evidence that demonstrates that the regulations are related to achieving the Agencies’ generalized safety concern. Thus, the Court struck camping areas of state parks and state forests from the regulations.

  Fourth Amendment Rights

The Plaintiffs also challenged a portion of the regulations that would permit law enforcement officers to ask an individual for identification sufficient to undertake a background check. The Court held that “[t]hese regulations give unfettered discretion to law enforcement to stop visitors, question them and require identification without requiring a scintilla of evidence of criminal activity.” The regulations pertaining to the request for identification were held to be facially unconstitutional, whereby “no set of circumstances exist under which the [regulations] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). A facial challenge to a regulation is the most difficult type of constitutional challenge to mount successfully. Id. The Court struck the portion of the regulations as unconstitutional under both the Fourth Amendment and Article I, Section 6 of the Delaware Constitution.

The Court also struck down a provision of the regulations whereby the Agencies attempted to overreach their authority and recognize out-of-state concealed carry permits for visitors of state parks and state forests. The Delaware Attorney General has the sole authority to issue concealed carry permits. 11 Del. C. §1441(k). The Court held that this portion of the regulations was preempted on state statutory law grounds.

As an appendix to its opinion, the Court provided a redlined version of the regulations that showed the stricken portions that it held unconstitutional and preempted in its opinion. (A local paper published one of several articles about the case.)

The recent decision from the United States Supreme Court in Caetano v. Massachusetts, 577 U.S. _ (March 21, 2016), includes a concurring opinion that is a forceful reiteration of the Supreme Court’s position on the Second Amendment.  As many readers know, the decision in McDonald v. Chicago, 561 U.S. 742, 750 (2010), held that the Second Amendment right to bear arms is fully applicable to the states. McDonald was a sequel to the Supreme Court decision in District of Columbia v. Heller, 554 U.S. 570, 582 (2008) (Scalia, J.). The Heller decision emphasized that the Second Amendment protects an individual right to keep and bear arms.  In the Caetano case, the U.S. Supreme Court granted a writ of certiorari, vacated the judgment of the Supreme Judicial Court of Massachusetts, and remanded for further proceedings not inconsistent with the per curiam opinion.  The Caetano opinion strongly criticized the Massachusetts court for failing to follow Heller in several respects. That court failed to recognize a stun gun as among the types of weapons that are protected under the interpretation of the Second Amendment in Heller.

Justice Alito and Justice Thomas joined in a concurrence which strongly rebuked the Massachusetts court for flagrantly ignoring the clear rulings in Heller.  The concurring opinion of Justices Alito and Thomas could be viewed as a way of honoring the author of the Heller opinion, Justice Scalia.  The concurrence reminded the Massachusetts court of several basic principles in Heller including the following:

“It is settled that the Second Amendment protects an individual right to keep and bear arms that applies against both the Federal Government and the States, District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 742 (2010).  That right vindicates the ‘basic right’ of ‘individual self-defense.’”  Id. at 767; see Heller, supra, at 599, 628.

This case involved a woman who obtained a stun gun to protect herself against an abusive former boyfriend who towered over her by nearly a foot and outweighed her by close to 100 pounds.  The Supreme Court opinion described how after work one evening, her ex-boyfriend confronted her and started screaming.  She stood her ground, displayed the stun gun, and told him that she would not take his abuse, and if he did not leave her alone she would use the stun gun on him.  It worked.  The ex-boyfriend left her alone.  Subsequently, in an unrelated incident, the police found the stun gun in her purse and arrested her because apparently the possession of a stun gun is in violation of a Massachusetts statute, even though the possession of the stun gun may have saved her life.

Justice Alito explained the connection between the right to bear arms and the basic right of self-defense:  “By arming herself, Caetano was able to protect against the physical threat that a restraining order had proved useless to prevent.”  Slip op. at 2.

Justice Alito also explained that Heller confirmed that:  “The Second Amendment extends, prima facie, to all instruments that constitute bearable arms . . .”  554 U.S. at 582.  Justice Alito expressed discontent that the Massachusetts court defied the reasoning in Heller.  The reasoning of the Massachusetts court, instructed Justice Alito, “poses a grave threat to the fundamental right of self-defense.”  The concurrence observed that:

  “A State’s most basic responsibility is to keep its people safe.  The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself.  . . . If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of State authorities who may be more concerned about disarming the people than about keeping them safe.”

This concurrence by Justices Alito and Thomas reinforces the vitality of the Heller and McDonald decisions and gives hope to those who cherish the Bill of Rights.

Postscript: The Delaware Supreme Court’s opinion interpreting the Delaware Constitution’s version of the Second Amendment, known as Article I, Section 20, was reinforced in the opinion styled Doe v. Wilmington Housing Authority, highlighted on these pages. The natural right to self-defense that each person is born with transcends the typical corporate and commercial litigation fare typically found on this blog.

chancerysealThe recent Delaware Court of Chancery decision in Doe v. Coupe, C.A. No. 10983-VCP (Del. Ch. July 14, 2015), clarifies the basis for equitable jurisdiction needed in order for the Court of Chancery to hear a claim that the state should be enjoined from enforcing an unconstitutional statute, in connection with a declaratory judgment action. Thus, the court denied a motion to dismiss, even if arguably the Delaware Superior Court might have jurisdiction over some part of the claim.

This ruling is useful for two reasons: (i) it delineates those types of declaratory judgment actions that seek an equitable remedy such that they do not need to be filed in Delaware’s separate court of law, the Superior Court, which is the state’s trial court of general jurisdiction; and (ii) it recognizes that the Court of Chancery can be a forum to address the constitutionality, based on the state constitution, of state statutes, which the state can be enjoined from enforcing if such statutes are found unconstitutional. This decision did not, however, address the merits of the constitutionality issue.

Nonetheless, I view this decision as an invitation for litigants to consider the Court of Chancery, more frequently known for corporate litigation, as an option for certain types of civil rights litigation. See, e.g., Doe v. Wilmington Housing Authority, a recent Delaware Supreme Court decision interpreting Section 20 of Article I of the Delaware Constitution.

See generally, recent Chancery opinion highlighted on these pages that also addressed the types of declaratory judgment actions that may be heard in Chancery, instead of Superior Court, but which reached a different conclusion than the instant case. See 10 Del. C. Section 6501, et seq. (The Declaratory Judgment Act)

A few months ago, I was honored to receive the Chief Justice William Killen Award for Second Amendment Appellate Advocacy in connection with winning a unanimous en banc decision by the Delaware Supreme Court in Doe v. Wilmington Housing Authority. That decision, based on the Delaware Constitution’s analog to the Second Amendment, recognized a right to bear arms outside of one’s home. The National Rifle Association, the nation’s oldest civil rights organization, provided indispensable support for the litigation which vindicated the constitutional rights of a resident in public housing, whose right to self defense was infringed.

The award, shown below, was presented by the Delaware State Sportsmen’s Association.

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Doe v. Wilmington Housing Authority, is the name of a 2014 Delaware Supreme Court en banc unanimous decision that recognized the right to bear arms outside one’s home based on the Delaware State Constitution, Article I, Section 20. The gist of the opinion was highlighted on these pages here. The plaintiff in that case, a resident of public housing, could not have vindicated her rights through four years of litigation without the support of the National Rifle Association.

The NRA News TV Channel recently interviewed the plaintiff, who until the final decision was published, remained anonymous for fear of retaliation. The link to a video clip of her interview is available via this hyperlink.

Why is this relevant to this blog on Delaware corporate litigation? Because, as the U.S. Supreme Court has recently and repeatedly confirmed, the right to self defense, which is at the heart of the right to bear arms in both the U.S. Constitution and the Delaware Constitution, is a natural right that every person is born with. It is not a right granted by the U.S. Constitution. Rather, the U.S. Constitution and analogous provisions in state constitutions recognize this pre-existing right that we are all born with. One cannot give someone something they already have. Few rights enjoy this exalted status. It is such a fundamental right, it transcends the limited focus of this blog. God Bless America.



Doe v. Wilmington Housing Authority, et al., Del. Supr., No. 403, 2013 (March 18, 2014).

Important Case: Today’s unanimous Delaware Supreme Court opinion, en banc, is one of the few in the country that has expressly recognized that there is a constitutional “right to bear arms outside the home”. Slip op. at 17. In particular, this decision was based on Article I, Section 20 of the Delaware Constitution, which provides broader rights than the Second Amendment to the U.S. Constitution. This case involved the rights of residents of a housing authority in Wilmington that were subject to eviction for exercising their fundamental right to self defense.

Prior decisions and procedural history in this matter were highlighted on these pages. Many thanks to the National Rifle Association for providing financial support for the author of this blog to vindicate the rights of the housing authority residents.

Doe v. Wilmington Housing Authority, Del. Supr., No. 403, 2013 (oral argument Dec. 18, 2013).

Issue addressed: The Delaware Supreme Court heard oral argument on the natural right to self defense exemplified in the right to bear arms recognized in Article I, Section 20 of the Delaware State Constitution, the analog to the Second Amendment of the U.S. Constitution. In particular, the issue presented was whether a housing authority can effectively deny this fundamental right to its residents.

Why is this case relevant to this blog that covers corporate and commercial litigation? Other than the fact that the author of this post made the oral argument before the Supreme Court (and the Third Circuit which certified the issue), because it involves a fundamental right that every person is born with and that the constitution recognized as pre-existing, as opposed to granting the right. Very few rights enjoy that exalted status.

Blurb: Delaware’s High Court heard oral argument on this case on Dec. 18. The issue was accepted upon certification from the U.S. Court of Appeals for the Third Circuit in an opinion highlighted on these pages. That opinion provides both procedural and factual background.


Doe v. Wilmington Housing Authority, No. 12-3433 (3rd. Cir., July 18, 2013)

In essence: This recent decision of the U.S. Court of Appeals for the Third Circuit is somewhat off topic for this blog, but the issue it addresses should be of universal interest because it deals with the natural right of self defense that each person is born with, and the U.S. Supreme Court has ruled to be embodied in the Second Amendment to the U.S. Constitution.  On the state level, Article I, Section 20 of the Delaware State Constitution is the analog to the Second Amendment but it expressly provides for broader rights to bear arms than does the Second Amendment.  This decision of the Third Circuit certifies a question of law to the Delaware Supreme Court on the scope of the Delaware State Constitution’s broader rights as applied to residents of a housing authority. 

Full Disclosure
The author of this post represents the plaintiff residents of a public housing authority in this matter who are backed by the National Rifle Association, the oldest civil rights organization in the United States.


The U.S. District Court for the District of Delaware recently issued a decision interpreting the Second Amendment to the U.S. Constitution, regarding the right to bear arms, as well as its counterpart in Delaware’s Constitution, as applied to residents of public housing. Doe v. Wilmington Housing Authority. We represent the plaintiff, with assistance from the country’s oldest civil rights organization. The court allowed the plaintiff to use a pseudonym. The right to bear arms for individual defense, recently reaffirmed by the U.S. Supreme Court, is one of the natural rights that the U.S. Constitution recognized as a existing at birth, as compared to a right that the Constitution granted.

The Delaware Supreme Court issued an important decision a few days ago on the right to bear arms outside one’s home. This right includes at its core the right to self defense which is a natural right that every person is born with–an exalted right not shared with many of our laws. Thus, the importance of this decision and this bedrock topic both transcend the corporate and commercial issues that are the typical fare of these pages.

The High Court’s ruling in Bridgeville Rifle and Pistol Club, Ltd. v. Small, Del. Supr., No. 15, 2017 (Dec. 7, 2017), was based on Article I, Section 20 of the Delaware Constitution which expressly provides for much broader rights to bear arms as compared to the analogous provision in the Second Amendment to the U.S. Constitution. Although the specific focus of the court’s opinion, which is 143-pages long when the majority opinion and the dissent are combined, was the invalidation of regulations that in substance eviscerated the right to bear arms in state parks and forests, the court’s scholarly analysis and explication of fundamental principles has far-reaching applicability.

For example, the Delaware Constitution provides for the right to keep and bear arms for the protection of self, home, family, state and for recreational and hunting purposes. Those rights were added to our state constitution at Article I, Section 20, in 1987, but there has been doubt in some circles if those words really “meant what they said.”

In sum, a majority of the Delaware Supreme Court has now established that Article I, Section 20 means, among other things, that the natural right to defend oneself, recognized in the Delaware Constitution through the right to bear arms, extends beyond the home. Although it is not an unfettered right, and reasonable restrictions can be imposed, as of last week state agencies cannot impose regulations that have the net effect of eliminating or eviscerating the right to bear arms in state parks and forests.

It would be easy to write a law review article about the 143-page decision, that was buttressed by the 2014 Delaware Supreme Court decision in Doe v. Wilmington Housing Authority, that the author of these pages also argued–but that law review article will need to wait. The Doe case, also highlighted on these pages, recognized a right to bear arms outside one’s home, but this Bridgeville decision provides more doctrinal underpinning and a more thorough analysis of the reasons why this fundamental right extends beyond the home.

The Washington Post on Dec. 8 and the News Journal on Dec. 9 carried stories on this case.